1. The Brazilian security forces have been repeatedly
accused of systematic violations of human rights and of the existence of a system which
guarantees the impunity of these violations. The Commission believes that there is indeed
a history of abusive practices by the police, proven by the Brazilian justice system and
recognized by the government itself in the National Human Rights Plan, though not all
national or state security forces are liable for violations.

2. An analysis of the structure and responsibilities of
these security forces should be presented before examining the resulting illegal violence
and looking into the study of police violence and its domestic and external control
mechanisms.

3. The authority to enforce, organize, and guarantee public
security is shared between the federal government and the states; there are federal police
and, in each state, civil police and military police.

4. The federal police, within the federal jurisdiction,
report to the Ministry of Justice and are active nationwide. The main function of the
federal police is to uncover criminal offenses against the political and social order and
against the goods, services, and interests of the federal government, its autonomous
bodies, and public enterprises, as well as other offenses with interstate or international
repercussions, or which must be uniformly repressed, as provided by law. They are also
responsible for prevention and control of illicit trafficking in narcotics and similar
drugs, contraband, and of attempts to evade the maritime, air, and border police and
federal police enforcement.

5. The state police are divided into civil police and
Amilitary@ police. The Amilitary@ police perform typical civil police duties, report
directly to the executive branch (Governor and Secretary of Public Security, respectively,
in each state) but it is not an internal force of the national military. However, they
have kept the name Amilitary@ police, which was given to them when the force was created
during the period of military government in 1977.(1)
To remember that it is not a properly a military force and that it directly depends of the
Executive Power of each state, in this report it will appear in Asemicolums@.

6. The Amilitary@ police are responsible for actual
policing and preservation of public order. Their primary occupation is daily patrols and
the pursuit of criminals. Regarding subordination, both the civil and Amilitary@ state
police report to the Governors of the states, the Federal District, and the territories.
(Art. 144.6 of the Federal Constitution). The states= Chief of Police is the Secretary of
Public Security, who directly assists the Governor and is responsible for any acts of law
enforcement and crime prevention in the course of duty.

7. The civil police function as state judicial police and
investigate criminal offenses, with the exception of military offenses and those under the
jurisdiction of the federal police.

8. For years the Commission has been receiving reports from
government agencies, the press, and nongovernmental organizations of the violent actions
of the state police, especially the Amilitary@ police, who are accused of using violence
both on and off duty. One argument commonly used by the military police in response to the
accusations leveled at them concerning numerous deaths they cause, is that fatalities
occurred in legitimate self-defense or in strict compliance with their duty.(2) Though it is true that violent crime is
prevalent in many states, there is evidence that the reaction of the police not only
exceeds legal and regulatory limits, but that police officers often use their power,
organization, and weapons to engage in illegal activities. The Commission also wishes to
note that efforts are being made by federal and some state governments to correct these
excesses and violations, in general, at the initiative and with the support of
organizations in civil society.

9. In 1994, partial data for 14 federal states in Brazil
showed that there were 6,494 homicides overall, with liability determined in about half of
them. Of this latter number, 8% were attributed to Amilitary@ police and another 4% to
Adeath squads.@ A state-by-state profile of the accused presents major differences:
responsibility is attributed to the police in 17% of the cases in Alagoas; 6-9% of the
cases in Amazonas and Amapá, Minas Gerais, Pará, Paraíba, Pernambuco, Rio de Janeiro,
and Rio Grande do Sul; and in 5% or less of the cases in Ceará, Espíritu Santo, Goiás,
Rio Grande do Norte, Roraima, and Sergipe.

10. However, these percentages are greater if all types of
police, private guards, and extermination groups are included. For example, in the state
of Pernambuco, of the 1,176 persons accused of homicide during the period January 1994 to
October 1995, 215 (18.3%) were police officers and another 154 (13.1%) were members of
extermination squads.

11. According to reports, a large number of these deaths
are not caused by the action of the police in the strict performance of their duty but are
often related to the so called Aextrajudicial executions,@ which occur as a result of the
participation of members of the state police in extermination squads that kill even
adolescents and children. In the case of deaths caused in the line of duty, according to
surveys by the police themselves, the lack of professional training plays a significant
part.

12. The Parliamentary Commission on Investigation of the
assassinations of children and adolescents in Brazil concluded that the Amilitary@ police
were responsible for a large number of crimes of this type. The Commission also concluded
that the police who were accused of having committed these crimes found support in various
quarters, ranging from inadequate police investigations to an indulgent military justice
system.

13. The explanations given by the authorities about these
cases clearly show that, despite the radical political changes in the country since the
end of the military government, the Amilitary@ police continue to follow the repressive
strategy of that government, which instructed police officers to use violence to prevent
or eradicate any movements then thought to be subversive. Thus, many Amilitary@ police
currently commit abuses in the performance of their duties, evident even when the
examination of victims show that they sustained fatal wounds to such areas of the body as
the ribs, clearly indicating that they had not attempted to resist, and in many cases were
unarmed.

14. In Brazilian cities, the police authorities point to
crime as one of the causes of police violence. However, the Commission observed that not
all the victims of abuses committed by the police are connected with the world of crime.

15. The Government maintains that, after a number of
flagrant incidents of brutal abuses, ranging from the mistreatment of prisoners to
participation in death squads, the Federal Government and some state governments have
launched vigorous programs against the action of the police and extermination squads. In
addition, since 1993, the Federal police have been conducting a special investigation into
police misconduct. In the state of Rio de Janeiro alone, 131 members of death squads have
been tried in recent years (1994 and 1995), 64 of whom were imprisoned at end 1995. They
have also been expelled from the police force.

16. According to informed opinions, the excesses currently
committed are not related to Apolitical crimes,@ but to common crimes which, in the minds
of some police, and even civilians, are associated with stereotypes of Ablacks,@
Aunemployed,@ Apoor,@ Astreet girls,@ or Astreet boys.@(3)

17. Police violence against children, especially street
children, seems particularly vicious in some states. In Bahia, for example, the
Legislative Commission on Human Rights held hearings on this in April 1995 and received
information about five massacres attributed to the state Amilitary@ police, three of which
involved children.

18. In 1994 a young man in Manaus, was shot by the police
who confused him for someone involved in a brawl. The victim was paralyzed. The police
responsible for the attack is under judicial process, but meanwhile is free and no
administrative punishment was established.(4)
Cases like this occur frequently. It is also common for police who commit abuses to at
times receive awards from the police corps for such exemplary action. The Commission was
informed that the police authorities in some Brazilian states publicly support police
violence, as evidenced in some Sao Paulo publications in November 1996. The Commission is
concerned about this as it would not only be an incentive to police violence but would
legitimize institutional violence.

19. There even cases in which police officer who have
victimized suspects have been rewarded and promoted. A well known case is of a corporal
previously accused in 49 assasinations, that after allegedly executing a suspect was
elected as AOfficer of the Year@ and condecorated.(5)
Moreover, the Colonel who gave the medal to this corporal is himself accused of 44 murders
in his 24 years of police service.(6)

20. Official "military" police statistics show
that between 1988 and 1992 the following civilian deaths were caused in Amilitary@ police
operations: 294 in 1988; 532 in 1989; 585 in 1990; 1,074 in 1991; and 1,470 in 1992.(7) In 1994 the "military" police
killed 522 persons and, in the first three months of 1995 alone, they killed 136
civilians.(8) These indices spiraled from
1988 to 1993. The situation was reversed in the metropolitan area of Sao Paulo where the
number of civilian deaths at the hands of the "military" police has been
declining since 1993, after the massacre of the inmates in Carandirú. In 1992, 1,190
civilian deaths were caused by the police, which was more than the total of 1,015 for the
four previous years. In 1996, the figure fell to 106 civilian deaths as a result of police
action.(9)

21. Whereas the situation in terms of numbers of deaths by
the police seems to be improving in Sao Paulo, an alarming phenomenon has been occurring
in Rio de Janeiro since May 1995, when the new Secretary of Public Security took office.
Since then to February 1996, the number of deaths by the "military" police per
month has risen from 3.2 to 20.55, giving a total of 201 in 1996. One third of the deaths
were caused by the Ninth Battalion, which covers many slum areas.(10)

22. The Commission is struck by the fact that, although the
number of injured is usually far greater than the number of deaths in armed
confrontations, during this period in Rio de Janeiro, the number of civilian deaths in
confrontations with the Amilitary@ police was three times the number of persons injured by
them. This is evidence of the use of excessive force and even shows a pattern of
extrajudicial executions by the Rio de Janeiro police. These attitudes have had an impact
on the population's confidence in its police force--key to the rule of law--, which is at
a very low ebb in Rio. In 1995 and 1996, only 12% of persons robbed reported the incident
to the police. This lack of trust is more marked depending on social status; one in three
robberies was reported in high-income sectors, as opposed to only one in ten in low-income
sectors.(11)

23. Cases of extrajudicial executions by the Amilitary@
police occur not only in the course of duty but when they are off duty. These cases are
reported daily by local and international sources and, in the Commission=s opinion, show
an alarming pattern of behavior that warrants special attention.

24. For this reason, some of the many cases reported by
local and international sources in the period covered by this report (1988-96) are cited,
not so much to confirm each and every one of the events described, but to illustrate the
existing pattern of violence.(12) The cases
involving violence in general will be mentioned in this part of the report and those
involving violence against minors will be discussed in the chapter on extrajudicial
executions of children and adolescents. Some examples will also be cited under the heading
ADeath or Extermination Squads.@

25. The Commission has found that, when the authorities
decide to investigate cases of police violence, they encounter great difficulties in
gathering evidence to identify the persons responsible for the human rights violations,.
One reason is the misplaced esprit de corps of the police, who cover up the
violence perpetrated by their members by obstructing justice. The Commission received
reports, for example, that torture is commonly used by state police as a method of
investigation. According to these reports, when the authorities wish to verify the reports
of torture, the court orders are obstructed and even disobeyed.(13)

26. Another obstacle faced is the fact that in Brazil the
so-called Alaw of silence@ prevails; eye witnesses refuse to clarify the circumstances of
events they witnessed for fear of possible reprisals. The fear of reprisal is so great
that often even the victims of police violence themselves prefer not to speak to avoid
retaliation. In Brazil, there is still no effective witness protection system, though it
is beginning to be implemented, as indicated later on.(14)

27. The fear of testifying is understandable when
witnesses= lives are threatened for breaking the Alaw of silence.@ What happened on
November 6, 1994 to young Eduardo de Araujo, aged 14, a survivor of the Candelaria
assassination, is an example of this. The young man was shot and killed by two men who
passed by his house every day firing into the air. On the day of the assassination, the
men repeated their routine but made him run, thereby transforming him into a moving
target.(15)

28. On the other hand, when a witness is prepared to
collaborate with the justice system to identify criminals, the judicial process is so slow
that months without protection may go by before the witness is called to testify; this
discourages collaboration. This was the case of Wagner Dos Santos, a 23-year-old car
washer and principal witness in the Candelaria killings, who was also attacked. After the
killing, Santos moved to Bahia for protection but, 15 days before returning to Rio de
Janeiro and while he was living in a witness protection house, under the protection of the
justice system guards, there was a second attempt on his life by the Amilitary@ police
involved in the killings.(16)

29. The police=s mistrust of the marginal population and
their lack of respect for the law result in the population also mistrusting the police.
Though this level of mistrust is not the same in every state, it is very high in most of
them, reflecting the prevailing climate of insecurity , which is conducive to human rights
violations. In the state of Bahia, for example, surveys in 1995 reveal that 85% of the
population does not trust the Amilitary@ police and that 82% does not trust the civil
police, in view of which the legislature has established a Parliamentary Investigation
Commission. These figures confirm the figures given earlier for Rio de Janeiro.

30. The government of the state of Pernambuco took an
important step to remedy this situation by signing an agreement with the people=s
organization legal advisory office (GAJOP), a nongovernmental organization. The project,
known as PROVITA, is aimed at instituting a program to support and protect witnesses and
victims of violence. It consists of joint action by governmental agencies and entities, as
well as persons in civil society to provide psychological support services to victims of
violence. It also targets the establishment of proper facilities for the protection of
threatened witnesses. Under the agreement, which is in the initial stage of
implementation, there are already 25 witness protection facilities in different regions of
the state, showing how seriously the state government is taking this initiative by civil
society. A similar agreement was entered into by the Ministry of Justice and Viva Rio, an
NGO of the State of Rio. Also underway is a program at the Crime Victim Care Center
(CEVIC) which aids victims through legal and psycho-social assistance.

31. The Commission hopes that the agreement will yield the
expected results and that the example of Pernambuco will be followed by other state
governments, since the witness protection bill dates back several years, having been
proposed in 1993 and resubmitted to the congress in 1996 by the executive branch to study
it regarding any incompatibility between its provisions and the existing Brazilian legal
structure. That notwithstanding, the Commission is pleased to note the government=s
interest in having the states establish their own witness protection programs, as stated
in the National Human Rights Plan (PNDH) as a short-term goal.

32. The Commission must stress the adverse consequences of
this lack of control of the crime situation by the forces of law and order, who themselves
act unlawfully and contrary to the regulations: the loss of the public=s confidence in the
rule of law, and uncontrolled attempts to respond to the situation.(17)

33. Some Stats have taken laudable initiatives to reduce
police violence. One such initiative is in the same state of Bahia, whose Parliamentary
Commission began holding public meetings in 1994 in schools in poor areas, to discuss
incidents of police violence in the presence of representatives of the police, local
organizations, and parliamentarians.

34. Another example is the Community Centers for Citizen
Defense, launched by the Secretariat of Security in Rio de Janeiro, which combine civil
and Amilitary@ police with other government services, such as the fire department,
disaster assistance, and youth programs. This Secretariat has also started to train its
staff at the university in law and order, human rights, and sociology. Of equal importance
is the role of police ombudsmen, examined at the end of this chapter

35. At federal level, legislative initiatives have been
taken to combat impunity, especially that involving police accused of human rights
violations:

a) Law 9455/97, which gives a legal description of the
crime of torture and sets severe punishments for it, as the 1988 Federal Constitution
allows;

b) The draft sent by the Executive to the National
Congress in April 1977 for the purpose of simplifying the procedures for taking testimony
from eyewitnesess in criminal cases.

36. The death or extermination squads were established by
former police officers to fight crime. In Rio de Janeiro, for example, the first groups of
this kind were established around 1950. Their members were known as
"justicieros" (vigilantes).

37. An investigation carried out in 1991 showed that 27%
(8,000 police officers) of the Rio de Janeiro police force had been invited, at one time
or another, to join these groups.(18)
According to a survey in Rio de Janeiro and Sao Paulo, in 1996, 76% of the persons
surveyed said that they believed that death squads formed by police officers did exist.(19)

38. The report of the Parliamentary Investigation
Commission (CPI) of the Rio de Janeiro Legislative Assembly on the extermination of minors
has identified 15 extermination squads in the state. In 1994, these groups were active in
the municipalities of Duque de Caxias, Nitérói, and Barras Mansa.(20) Reports submitted to the CPI of the
National Congress show that there were 30 extermination squads in the state of Pernambuco
that year.(21) Also in the states of
Espíritu Santo and Minas Gerais there were vigilante squads formed by the civil and
Amilitary@ police (PM).(22)

39. The composition of the extermination squads varies.
Sometimes they are made up of off-duty police officers,(23)
who join these groups as a means of augmenting their low incomes. Sometimes they are made
up of police officers expelled from the force because of their criminal activity. In the
case of both the police officers in the service and those who were expelled, participation
in death squads represents a means of making a living. Sometimes the groups comprise
individuals hired as security guards by small merchants fearful of holdups.(24) Some groups have little to do with
organized crime but control a particular area to guarantee the safety of the persons
living there.(25) Others are members of
criminal organizations, some sophisticated some not, involved in drug trafficking and
other illicit activities.(26) Though the
members of the squads begin their activities as actual guards, their contact with
delinquents frequently draws them into drug trafficking and various criminal activities,
such as extortion.(27)

40. The death squads exterminate adults, adolescents, and
small children alike. The adult victims are usually members of the crime world. The
children and adolescents are usually poor and perceived to be a threat to society. At
times these adolescents and small children make deals with the police or with organized
crime and are executed extrajudicially when these deals fail.(28)

41. According to the figures of the Center for Reporting
Extermination Squads, established by the government of the state of Rio de Janeiro, of the
159 persons arrested between April 1991 and June 1993 for their involvement in this type
of activity, 53 were Amilitary@ police officers.(29)

42. To understand the psychology of these squads, one of
the so-called vigilantes could be quoted: "the police cannot patrol every
neighborhood or every street.... Meanwhile, crime continues to rise and the number of
undesirables multiplies....We establish order."(30)

43. It is said that local politicians (mayors, municipal
councillors, state and federal congressmen) frequently support death squads and often use
the vigilantes' control over the local population to obtain votes or intimidate opponents.
At the same time, it is alleged that some individuals who have been on trial for being
members of these groups work openly with some local politicians. Anyone opposed to the
control exercised by the vigilantes in their respective neighborhoods risks his/her life;
it is also very risky to report them to the police. Thus, between 1991 and 1993, in the
area of Rio de Janeiro alone, extermination squads executed 31 community leaders.(31)

44. In the state of Rio Grande do Norte, allegedly members
of the police ended the life of attorney Francisco Gilson Nogueira de Carvalho early in
the morning of October 20, 1996. Nogueira de Carvalho was the attorney for the victims of
police violence and an assistant in the Justice Ministry in cases that exposed an
extermination squad known as the Agolden boys@ inside the state civil police force. The
assassinated attorney also exposed the fact that the authorities connived with the
perpetrators of the crimes, since the corresponding investigations into the deaths caused
by the police were never brought to trial. The Special Commission created for that purpose
by the Attorney General=s Office found that the police force in question had been involved
in more than 30 deaths. The federal authorities, who knew about the threats on the life of
Attorney Nogueira Carvalho since 1995, had placed him under federal police protection. The
alleged mastermind behind this crime, the former Deputy Secretary of Public Security of
the State of Rio Grande do Norte, was removed from his post.

45. In the state of Pernambuco, a Parliamentary
Investigation Commission, created by the state legislature, found 30 extermination squads,
many of them operating with police collaboration or participation.

46. According to reports, in many states in Brazil (Acre,
Amazonas, Alagoas, Espiritu Santo, Minas Gerais, Mato Grosso do Sul, Pará, Rio de
Janeiro, Sergipe, etc.), Adeath squads@ have acted with impunity, eliminating poor youth
and suspected criminals in urban areas and community and labor union leaders in rural
areas.(32)

47. These squads operate with impunity,(33) mainly due to threats, witness and
prosecutor intimidation, the inadequacy of investigations to bring their members to trial,
and the inefficiency of the judiciary in sentencing them.(34)
Furthermore, their operations are in part tolerated by the public, which often considers
them a "crude" form of administering justice to compensate somewhat for the
inefficiency of the judiciary in combating violence.(35)
It is also alleged that they sometimes operate with the consent of the local police
authorities, who make little or no attempt to stop their activities, either because they
are involved or because they feel that the extermination squads help to get rid of
criminals, drug traffickers, and other "undesirables."(36)

48. Interviews with Amilitary@ police reveal the apparent
motives for police violence. The main argument for killing criminals instead of detaining
them is that this a more effective way to fight crime. According to those interviewed, it
is a means of avoiding handing over suspects to the civil police, who allegedly accept
bribes and are inefficient in handling investigations.(37)

49. Indeed, the ratio of crimes committed to investigations
completed and trials conducted shows that impunity is very real. In the state of
Pernambuco, for example, between January 1986 and June 1991, there were 460 homicides of
youths 18 and under. Of that figure, 118 cases were tried. In the first 10 months of 1994
there were 114 assassinations of small children and adolescents and, according to data
from the Secretariat of Security, only 16 investigations were opened.

50. In the state of Rio de Janeiro, data from the Institute
of Religion conclude that of 3,450 homicide investigations, 92% of the cases went
unpunished. Of 500 cases, only 7.8% were brought to justice. According to the Brazilian
Institute for Social and Economic Analysis (IBASE), in a study on investigations of 306
homicides of small children and adolescents in Rio de Janeiro in 1991, there was
sufficient evidence to prove the guilt of the perpetrators in most cases yet, almost a
year after the start of the investigations, the cases were abandoned and dozens of them
could not even be located. The study concluded that the poor process of the investigations
is due to a lack of interest on the part of the police and the public prosecutors.(38)

51. Another phenomenon observed in Brazilian cities is
lynching. It is a widespread and a regular event and might be triggered by any number of
events from mere shoplifting by an adolescent to rape. It appears that the occurrence of
lynchings, like death squads, is due to the lack of a functional and effective police
system, and the fact that the public does not believe in the effectiveness of the justice
system. Lynching could also be cited as another cause of police violence, because the
police may commit abuses to prevent the public from conducting lynchings. In practice,
violence by members of the police force would always be less reprehensible, in the eyes of
police officers, than the violence committed by the general public in lynchings.

52. It should be noted that, in cases where the public
attempts a lynching, the police intervene to prevent the attempt from succeeding by taking
the victim away to a safe place. Upon examination of the 213 cases in which lynching was
prevented, the police took direct action in 54.9% of them, showing their effectiveness in
preventing this type of crime.(39)

53. State police action is internally controlled by the
Police Corrections Offices of each state, whose basic function it is to monitor and
inspect the regularity of the services provided by the civil and Amilitary@ police of each
state and to verify, through the representative designated by the Secretariat of Security,
the irregularities involving both civil and Amilitary@ police, indicating the applicable
penalties and conducting the proper administrative procedures.

54. The Commission notes the action taken by some
Corrections Offices of Public Security Directorates in compliance with their difficult
task of internal control. To give an idea of this task, data from the Corrections Office
in the state of Pernambuco could be cited. In 10 months in 1995, 435 reviews were
initiated and 265 completed. Of these, 46 were administrative procedures, stemming from
criminal offenses (14 for bodily harm caused by police officers). The result was that 1
delegate, 2 commissioners, 1 scribe, and 10 officers were dismissed, in addition to 7
other administrative penalties. This program complements the Pernambuco Security
Secretariat program for the protection of witnesses, family members, and victims of the
type of violence described.

55. The Commission also points out that just recently, in
1995, the first police ombudsman=s office was established by decree in the state of Sao
Paulo, and headed by a representative of civil society. Its purpose is to enhance internal
controls of the actions of the state police. According to official data, the Sao Paulo
Ombudsman=s Office received 1,134 cases in its first six months of operation and solved
34% of them. Of all the cases, 64% concern improprieties by the civil police of Sao Paulo
and 36%, improprieties by the Amilitary@ police. Almost 10% of the complaints against the
Amilitary@ police in 1996 referred to homicides with the alleged involvement of Amilitary@
police. Of the total, some 100 complaints (approximately 10%) report abuses of authority
and torture. The Ombudsman=s Office has drawn up a draft bill seeking institutional
autonomy and independence as an initial step toward consolidating the first Brazilian
experience of the police ombudsman. The auditing of the São Paulo Police en 17 months of
activities requested the punishment of 420 police members.

56. The federal government included the establishment of
police ombudsmen=s offices as one of the measures to be implemented through the PNDH. In
addition to the Ombudsman=s Office in Sao Paulo, the federal district also has one, and
the states of Minas Gerais, Pernambuco, Bahía and Pará are establishing their own under
state law. The existence and action of the Ombudsman=s Office of the state of Sao Paulo is
being widely publicized by the state government and access to this agency is being
facilitated, to encourage the public to report the abuses committed by the Amilitary@ and
civil police. The Commission calls attention to the coincidence of the establishment of
this office and the noticeable decline in the deaths caused by the police in Sao Paulo as
priorly stated in this chapter.

57. External controls of the action of the civil and
Amilitary@ police are within the purview of the Ministry of Justice (Article 129.VII of
the Federal Constitution) and the judiciary. Characteristic of its establishment under the
military regime, the state Ministry of Military Justice is responsible for initiating
criminal action in the military justice system and has other functions, such as opening
Amilitary@ police investigations and exercising external control of Amilitary@ police
activity. This, in the Commission=s opinion, is a critical failure of the system of
guarantees of police action, because it wrests control of common police actions (by
Amilitary@ police) from the civil justice ministry when the Amilitary@ police are
precisely the ones accused of most human rights violations.

58. Regarding effective control of police activities, the
importance of the agency designated to conduct forensic examinations should also be
stressed. The Institute of Forensic Medicine, a part of the civil police force, often
issues inaccurate expert determinations. As these expert reports tend to establish the
liability of police officers in deaths or injuries, it is fundamental that the agency not
be connected with the police force but with the scientific or forensic medicine
departments of universities or other institutions, to guarantee its strict professionalism
and independence.

59. At the initiative of the National Secretary of Human
Rights, Dr. Jose Gregori, a working group was established to study reform of the public
security system in Brazil. A proposal that is being studied deals with establishing a
national agency with prerrogatives that include inspection of public security forces. The
objective of the group is to define the role of the security forces in the context of
democracy and the state of law, so as to make Brazilian police agents prime movers in
promoting fundamental rights and freedoms.

60. The state military justice system has the authority to
try and judge members of the Amilitary@ police accused of committing crimes, defined as
military crimes, against the civilian population. This jurisdiction is governed by
military criminal law (Military Penal Code, CPM), exclusive to military personnel, which
contains substantive penal standards and constitutes Aa set of legal provisions to ensure
the accomplishment of the main purposes of military institutions, whose primary objective
is the defense of the nation.@ In this jurisdiction, Arank and discipline prevail.@4(41) It is also regulated by the Code of Military
Penal Procedure (CPPM), which contains formal or procedural provisions. The new law
9299/96 places under ordinary penal jurisdiction cases of attempts on life with criminal
intent, but maintains intact the rest of the jurisdiction of the military justice system
with regard to the police.4(42)

61. This is a special legal system, with its own principles
and guidelines, in which most of the provisions apply only to military personnel and
civilians who commit crimes against military institutions, unlike the ordinary penal
system, which is applicable to all citizens.4(43)

62. Article 125.4 of the Federal Constitution establishes
that:

The state military justice system has the authority to
try and judge Amilitary@ police officers and military firemen for the military crimes
defined in the law....

63. The definition is given in the Military Penal Code
which, in Article 9.II(f),4(44) states:

Article 9. The following are considered to be
military crimes in times of peace:

II. The crimes contemplated in this code, provided that
the definition thereof under ordinary penal law is the same at the time of commission:

f) use by military personnel and the like, in active
service or otherwise, of weapons owned by the military or any wartime equipment in the
custody of the military or under its inspection or administration, to commit an illegal
act.

64. In accordance with the above provision, the Amilitary@
police forces (federal, state, and in the Federal District), which are the state corps
responsible for crime prevention and law enforcement vis-à-vis civilians, are subject to
military penal legislation and the military courts, even when they commit crimes against
civilians in the line of duty or using weapons belonging to the police corps. This
jurisdiction was limited by law 9299/96 but, as shown below, this limitation does not
effectively eliminate the impunity derived from this exclusive jurisdiction.

65. Up until 1977, the prevailing opinion was that crimes
committed by Amilitary@ police in the line of duty were civil in nature and, therefore,
within the jurisdiction of the ordinary justice system.4(45)

66. Constitutional Amendment No. 7 of 1977--amending
Article 144.1(d) of the Constitution--, known as the "April Package" under the
military regime of that time, made it possible to establish special state military justice
to try and judge Amilitary@ police officers for military crimes defined in the law.4(46) The Federal Supreme Court then changed the
criteria and began to consider that the state military justice system did indeed have the
jurisdiction to try the Amilitary@ police for crimes defined in the Penal Code, when
committed by them in the line of duty.4(47)

67. This fundamental change in the jurisprudence of the
Federal Supreme Court resulted in an increase in the crimes committed by Amilitary@ police
with impunity.

68. In January 1983, a report on the performance of the
state military justice system since Constitutional Amendment No. 7 was published,
indicating that:

...the military justice system began to receive all the
cases (referring to Constitutional Amendment No. 7 of 1977), thereby magically absolving
soldiers and officers of murder. As a result of this impunity, almost 400 men died
last year, all of whom were not criminals; the vast majority of the victims are young
people and children with one or two violations on their records and poor people in
outlying areas, coming from the most impoverished segments of society.... (Underlining by
the Commission).4(48)

69. Despite the progress made, the 1988 Constitution
maintained4(49) the police organization of
the military governments, the militarized concept of public security, and the exclusive
jurisdiction for judging ordinary crimes committed by Amilitary@ police in the line of
duty. One could say that the Constitution maintained an exclusive regime that reaffirmed
the transfer of trials of Amilitary@ police to the jurisdiction of the military justice
system and kept them in the same state of quasi-impunity as Constitutional Amendment No.
7, issued during the military dictatorship.

70. To understand the reasons for this impunity, it is
important to analyze some aspects of the structure of the military justice system in
Brazil.

71. The federal military justice system and that of the
federated states are similarly structured. Criminal offenses are divided between military
ombudsmen=s offices, the forums of preliminary proceedings in the military justice system
and which correspond to the criminal courts (varas criminais) in the ordinary
justice system. The military ombudsman=s office comprise a collegiate body of one
judge-ombudsman and one council of justice.

72. The Council of Justice holds special sessions of
preliminary proceedings to judge the accused. It currently comprises four military
officers in active service and one civil judge-ombudsman. The president of the council,
chosen on the day set for sentencing, must be a military officer of the highest rank (law
8457/92, Art. 16).

73. The judge-ombudsman is the only official who is not a
member of the military corps. The judge must be an attorney elected by competitive
examination, open to the public. The judge-ombudsman has the authority to admit a suit
filed by the plaintiff and to proceed to initiate criminal proceedings, ruling on points
of law which would otherwise not be properly handled by the military judges, who are
usually not attorneys.

74. In the federal sphere, the decisions taken by military
ombudsmen may be appealed before the Military High Court (STM). This is a collegiate
appellate body comprising 15 members, namely: 4 officers-general of the army, 3
officers-general of the navy, and 3 officers-general of the air force. All these officers
must be in active service and be appointed by the President of the Republic after hearings
in the Federal Senate. The Military High court also comprises 5 civilians, of which 2 must
be judge-ombudsmen, and the others renowned legal experts aged over 35.

75. In addition to hearing appeals, the Military High Court
has the authority to reestablish military jurisdiction in the event that it was infringed
by the lower court judge (in the ordinary justice system). To this end it has the
authority to remand the case to a higher court (law 8457/92, Art. 6.IV). If the criminal
court judge in the ordinary justice system tries a military officer for an common crime,
the process may be referred to the military justice system for ruling by the Military High
Court.

76. The Constitution authorizes the federal states, with a
Amilitary@ police force of over 20,000, to establish their second military appellate body,
at the initiative of the Court of Justice, namely the Military Court of Justice. This type
of court currently exists in the states of Sao Paulo, Minas Gerais, and Rio Grande do Sul.5(50)

77. Military court cases are often delayed on for years,5(51) due to the heavy workload,5(52) the scarcity of judges and prosecutors,
excessive red tape, delays, etc. The Commission has found that the courts tend to be
indulgent with police accused of human rights abuses and other criminal offenses, thereby
allowing the guilty to go unpunished.

78. In this climate of impunity,5(53) which breeds violence by the Amilitary@ police
corps,5(54) the police officers involved in
this type of activity are encouraged to participate in extrajudicial executions, to abuse
detainees, and to engage in other types of criminal activity. The violence has even spread
to the prosecutors who, when they insist on continuing investigations into the crimes
committed by the Amilitary@ police, have been threatened and even subjected to death
threats. It is also not uncommon for witnesses summoned to testify against police officers
on trial to receive intimidating threats.5(55)

79. In a letter addressed to the Commission in 1996, the
Santo Dias Center stated, in this regard:

In military investigations (inquiries), officially
carried out by the organs of military justice, the bias in favor of incriminated
police officers in most cases is so flagrant that it turns the victims into criminals. It
is also very common to intimidate witnesses, whose court depositions are taken in the
presence of the accused police officers. Under such conditions, it is not surprising that
so many investigations are dismissed on grounds of insufficient evidence.... If this stage
is completed and charges actually filed or admitted, new difficulties arise in the
proceedings, which are deliberately slow and plagued with delays: deferred establishment
of the councils, repeated postponements for minor procedural problems, etc. (Underlining
by the Commission).

Thus, it is not surprising to find proceedings5(56) dragging on for four or five years or
indefinitely, allowing enough time for the events to be forgotten by the press and the
public. After such a long time, the victims' families lose hope, witnesses move away, and
the evidence disappears.5(57)

80. Reliable sources report that in São Paulo alone, where
1,470 civilians were killed by the Amilitary@ police in 1992, the military courts
eventually absolved almost all the Amilitary@ police officers tried.5(58) A study5(59)
conducted in São Paulo entitled "Military Police (PM) Involvement in Crimes becomes
Routine in Espiritu Santo", found that in an 18-month period, 143 cases had come
before the state military courts and that in 92% of them the police officers had been
found not guilty.6(60)

81. Meanwhile, the limited number of prosecutors
responsible for numerous cases of violations presumably caused by the Amilitary@ police
poses a serious problem. In the state of Sao Paulo, for example, there were 14,000 pending
cases of all kinds in the military justice system in 1992, but only four prosecutors were
handling these cases, meaning that each prosecutor had 3,500 cases.6(61)

82. AMilitary@ police violence and impunity have given rise
to several congressiona initiatives designed to suppress the special military jurisdiction
for judging the crimes committed by Amilitary@ police in the performance of their public
order functions. One of them is the bill submitted by congressman Hélio Bicudo, 6(62) which returns to ordinary jurisdiction the
trial of crimes committed by or against state Amilitary@ police officers in the line of
duty. This bill proposes that Article 9.f of the Military Penal Code (decree-law 1001 of
October 21, 1969) transcribed above be repealed and the following sole paragraph included:

AOfficers and enlisted members of the Amilitary@ police
of the states in the line of duty are not considered to be Amilitary@ personnel in
criminal matters but are under the jurisdiction of the ordinary justice system for trial
and judgement of crimes committed by and against them.@

83. This bill evokes the concept of Summing Up No. 297, by
returning to the sphere of ordinary jurisdiction the judging of crimes committed by the
Amilitary@ police in the line of duty. The bill was not approved in its entirety but, with
the backing of the pro-government faction in the senate, a new bill was approved despite
the fact that President Cardoso had already endorsed the original bill. The President
enacted the substitute bill on August 7, 1996 (law 9299 of August 7, 1996). Law 9299
amends Article 9 of the Military Penal Code (decree-law 1001) defining military crimes.
The new Asole paragraph@ of this provision establishes:

The ordinary justice system shall have jurisdiction in
the crimes discussed in this article, when they constitute criminal attempts on life
committed against civilians. (Underlining by the Commission).

84. This means that the Amilitary@ police will continue to
be judged by special jurisdiction for crimes against humanity, such as criminal homicide,
bodily injury, torture, kidnapping, illegal imprisonment, extortion, and battery.

85. Another serious limitation was placed on the bill
during the debate in the lower house. A section of Article 82 of the Code of Military
Penal Procedure was amended to read:

In crimes with criminal intent against the lives of
civilians, the military justice system shall send the reports of the Amilitary@ police
investigation to the ordinary justice system.@ (CPPM, Art. 82.2).

86. Investigations (inquiries) will then be the
responsibility of the military authority, even in cases of criminal attempts on life,
despite the fact that, under the new law, these crimes would fall under the jurisdiction
of the ordinary justice system. This new standard is in contradiction with Article 144.4
of the Constitution, which assigns judicial police functions and the investigation of
criminal offenses, other than military offenses, to the civil police. Indeed, if criminal
attempts on life cease to be military offenses under the new law, the criminal
investigation should be handled by the civil police who, pursuant to Article 144.4 of the
Constitution, have Athe functions of judicial police and the investigation of criminal
offenses.@ By leaving the initial investigation in the hands of the Amilitary@ police, the
latter are given the authority to decide, from the outset, whether or not there is
criminal intent. This means that law 9299 of the Republic is incapable of significantly
reducing impunity.

87. The National Human Rights Program presented by the
government of President Fernando Henrique Cardoso establishes as one of its short-term
goals the following:

To confer on the ordinary justice system the authority
to try and judge the crimes committed by Amilitary@ police in the line of duty or with
police weapons, in support of a specific bill already approved by the lower house.

88. The Aspecific bill already approved by the lower house@
refers to the bill submitted by representative Hélio Bicudo, which had been approved by
the lower house before being referred to the senate and replaced by the substitute bill
that was finally approved.

89. The substitute bill met with rejection and a campaign
to revive the original text was started. This movement was launched on May 14, 1996 at a
meeting of the National Forum Against Rural Violence 6(63)
and the Congressional Human Rights Commission.

90. In July 1996, the original bill was resubmitted to the
congress, this time as bill No. 2190 of 1996.In this Commission=s opinion, the approval of
this bill, which coincides with one of the short-term goals of the National Human Rights
Program, would be key in combating police violence. If approved, Amilitary@ police in the
line of duty would cease to be military personnel for criminal purposes and the military
justice system would no longer have the authority to judge the ordinary crimes committed
by and against them. This would apply to Aall@ ordinary crimes, not only those with
criminal intent, as is the case with the recently approved law 9299. In addition, as the
program under reference states, the law should include the crimes committed by Amilitary@
police Ausing police weapons,@ to ensure that Amilitary@ police committing crimes with
police weapons are also judged by the ordinary criminal justice system. The Commission
also believes that it should be clear that the police investigation is to be handled by
the civil police, in accordance with Article 144.4 of the Federal Constitution.